David Bowdich, center, associate deputy director of the Federal Bureau of Investigation, is sworn in to testify at a Senate Judiciary Committee hearing on the Parkland massacre and school safety in March 2018 on Capitol Hill in Washington.

Even if the federal government screws up, that doesn’t mean it has to pay up in court.

The FBI is facing a wrongful death lawsuit alleging the agency is liable for the 17 deaths in the Parkland school shooting because it mishandled tips and failed to stop the gunman.

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The government’s lawyers are trying to get the suit tossed.

They have a strong case, and Parkland parents battling the federal government in the courtroom will face an uphill climb, said Gregory Sisk, a law professor at the University of St. Thomas in Minnesota and an expert in federal tort law.

“It is hard to sue the federal government and win unless you have something that falls into a conventional scenario like an automobile accident,” he said.

Federal law offers broad protections that shield the FBI and other federal agencies from lawsuits alleging that governmental failures resulted in harm.

Fred and Jennifer Guttenberg and Philip and April Schentrup are seeking unspecified damages in lawsuits filed against the FBI. Both lost children in the Feb. 14, 2018, massacre at Marjory Stoneman Douglas High School.

The FBI’s errors aren’t in dispute. The agency issued a statement shortly after the shooting, admitting it failed to follow “established protocol” by not fully investigating tips it received.

Philip and April Schentrup, whose daughter Carmen was one of the 17 victims of a violent attack at Marjory Stoneman Douglas High School, are part of the lawsuit against the FBI. (Jennifer Lett / South Florida Sun Sentinel)

Carmen Schentrup (Schentrup family / courtesy)

Whether the agency should be held liable for deaths that might have been prevented is being contested.

In the past, courts have ruled the FBI is protected from lawsuits because its employees exercise discretion in whether to investigate a tip — even if those decisions are flawed. This “discretionary function exception” shields agencies from lawsuits arising from an employee’s bad judgment.

Philip Schentrup dismissed the notion that the FBI had leeway in whether it should act. He said the FBI’s tip line was created specifically for people to report imminent acts of terrorism and violence.

“The FBI failed miserably," he said in a prepared statement. "Our lawsuit is to help ensure the FBI takes action when reliable and actionable intelligence is provided to the FBI. They had, and have, a duty to act.”

Botched tips

The FBI’s lapses have been well documented. A Mississippi bail bondsman submitted an online tip to the FBI less than five months before the Parkland shooting. Someone with the username “nikolas cruz” wrote on YouTube, “I am going to be a professional school shooter.”

An FBI agent interviewed the tipster, but investigators concluded they couldn’t determine the identity of the person who commented. The FBI never asked Google, which owns YouTube, for information that could have led agents to Cruz. They didn’t seek subpoenas to gather more information.

Then on Jan. 5, 2018, a longtime friend of the Cruz family called the FBI’s tip line and provided detailed information about Cruz in a call that lasted more than 13 minutes. She told the call-taker she feared Cruz “getting into a school and just shooting the place up.”

The FBI determined the call had “no lead value” and never forwarded the information to its South Florida field office.

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During a congressional hearing, David Bowdich, the FBI’s deputy director, told lawmakers the tips were not handled correctly.

“We made mistakes here — no question about that," he told lawmakers. “That said, even had we done everything right, I am not sure we could have stopped this act, but it sure would have been nice to try. It sure would have been nice for our investigator to sit down in front of Mr. Cruz and actually have that discussion.”

Dismissing the suit

Tina Jagerson, an FBI spokeswoman, declined to comment about the lawsuit, citing an agency policy not to comment on pending litigation.

Court records show the federal government is using two legal defenses.

First, the government’s lawyers argue the FBI was not required under Florida law to control the shooter’s actions. Florida courts have ruled that a person has “no duty to control the conduct of another or to warn those placed in danger by such conduct.” There are exceptions if a “special relationship” exists that requires a duty, but the government’s lawyers argue the FBI never made “any direct representations to the tipster that the FBI would take any specific action.”

Second, the government is arguing the suit should be dismissed because of the Federal Tort Claims Act’s discretionary function exception. This provision protects the federal government when employees make bad judgments while exercising discretion in the course of their jobs. The FBI argues employees have discretion as to whether to investigate, and no policy mandates that they act.

“The FBI employees who received tips from the public were not constrained to take mandatory and specific steps in the course of their assessment of the tips,” the federal government’s lawyers argue in court documents. “FBI personnel retain discretion to determine whether a tip indicates a credible threat that is appropriate for FBI involvement.”

The federal government successfully used that defense in a Massachusetts case in which an FBI clerk bungled a call in 2001. A man called the FBI and offered to surrender on bank robbery charges a day before he went on a murderous rampage that resulted in three deaths. The clerk disconnected the call and never told anyone about it. He initially denied taking the call and was sentenced to six months in prison for lying under oath.

The family of one of the victims sued, but the courts ruled the clerk was exercising his discretion. A federal judge dismissed the lawsuit.

Parkland parents likely have a stronger case in a wrongful death lawsuit they filed against former Deputy Scot Peterson, Sisk said. Peterson, the only law enforcement officer on campus when the shooting started, took cover in a stairwell near the building where the massacre was taking place, never making any attempt to confront the killer.

In December, a Broward judge rejected an argument that Peterson had no legal duty to stop the shooter. The judge ruled Peterson was not protected from the lawsuit by “sovereign immunity,” a legal doctrine that shields public employees from legal action based on their official conduct.

Senator blasts FBI

Part of the reason why the federal government is shielded from lawsuits is that the public can seek remedies through the political process, Sisk said.

“You can vote them out of office," he said. "You can complain to your members of Congress that the FBI is failing to do their job.”

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In this case, though, the FBI has declined to disclose to U.S. Sen. Rick Scott which disciplinary actions it took against the employees who botched the tip, citing “significant privacy implications.” An FBI spokeswoman also declined to comment when asked by the South Florida Sun Sentinel.

Scott has blasted the FBI, saying it has a pattern of failing to identify and investigate threats.

“The FBI’s failure to investigate this incident is pathetic,” he said.

Omar Mateen was investigated for 10 months in 2013-2014 before he killed 49 people at an Orlando nightclub in June 2016. The FBI determined Mateen was not a threat and closed the case.

The FBI received a tip about Scott P. Beierle’s hatred of women about three months before he shot and killed two women, injured five other people and killed himself at Hot Yoga Tallahassee in November 2018, Tallahassee Police said. The tip was determined to be “non-actionable” with “insufficient information,” according to a police report.

As for the Parkland case, FBI officials told families in December the worker who took the call “no longer works for the agency,” and the supervising agent who did not forward the tip to South Florida agents was “severely disciplined.”

The officials wouldn’t say specifically what that meant, other than it could have been a demotion or suspension without pay.

FBI officials say they have made significant overhauls since the Parkland shooting, adding staffing to its call center and changing review protocols.